Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

... because there's a serious problem in SFWA with rigid perceptions of "reinventing the wheel." Leaving aside that SFWA's wheel is a square mounted on an off-center axle (which still leaves it ahead of almost all other creators' organizations in the arts, because it has at least invented the axle), the repeated theme at the Business Meeting yesterday was to not just be aware of, but to be bound by, the past failures of the organization, in the name of not reinventing the wheel. I'm far from an advocate of ignoring history; however, that something could not be made to work in the 1970s does not mean it is a poor idea (or cannot be made to work) now. The publishing environment, the makeup of the membership — the very works being written — are not the same now as then. Hell, even copyright law itself is fundamentally different! Certainly there should be some awareness of past policy failures, but for an organization dedicated to the literature of change to allow its business meeting to be hijacked by this kind of ignorance displays a disturbing lack of vision. To archly and sarcastically invoke a historical analogy to being bound by history, the rhetoric at that meeting yesterday sounded a great deal like that of the battleship advocates in the late 1930s and early 1940s, in the face of the rise of airpower (and specifically naval airpower). Just how did those pesky little self-published authorsairplanes do against the battleships?

At that, though, it's hard not to recognize that most other organizations in the arts are worse. At least SFWA finally finished its corporate restructuring consistent with reality.

As a further example of the arrogance of designers and their quest for the perfect look at the expense of reality, consider car owners getting ticketed for failure to have a front license plate. Umm, designers: It's a legal requirement in most of the country (indeed, most of the world); allow for it in your designs. There's no excuse whatsoever for not having built-in license plate mountings on both front and back of every vehicle in this country (even the grey-market ones). That it destroys your clean lines and idiosyncratic visions is irrelevant: So, often, do aerodynamics and rollover protection and bloody mufflers. Perhaps I'm just annoyed at this because I was a long-ago victim of a parking-lot hit-and-run (on a military base, no less) by a 1970s Firebird with no front license plate that backed up at speed so I couldn't get a view of his rear plate... not much damage, but much annoyance. (I eventually tracked down the bastard and had my fellow-commander colleague "counsel" him... but that's because I saw the officer sticker in the window and couldn't let it go.)

But that's not the most-annoying "local" traffic issue in the "local" paper recently: The "driverless care" with a computerized California driver is a lot scarier, especially if one reads other complaints in that (usually well-mannered) column that reflect the general idiocy of the California-trained driver.

I'm shocked — shocked, I say — to "discover" that the NSA lied to everyone, including the Supreme Court and its own lawyers, about the extent of its surveillance. It's really the result of partisan gridlock and reactions to that gridlock... in the 1980s and early 1990s. After the Church Committee's review of the intelligence apparatus in the 1970s, political appointees were put in charge, extending down several levels from the very top of the various departments. The subtle pushback against this during the Reagan and George II administrations was to recast many of these perceived-as-vulnerable-to-patronage positions as Senior Executive Service positions in the overt name of continuity... and in the covert name of preventing real change down the road during That Other Party's administration. It worked, and worked all too well: Cold Warriors continue to dominate, as Cold Warrior SES people selected their like-minded successors without an awful lot of oversight from the constantly changing cast of political appointees.

It's a serious management, political, and constitutional conundrum with real-world consequences. It's also founded on a certain xenophobia and failure to acknowledge the immigrant past of this nation: The concept that non-Americans should be considered a priori untrustworthy concerning American interests — without much examination of whether someborn-and-bredAmericansareat leastequallyuntrustworthy — especially as to other born-and-bred Americans who had the audacity to be born differently from them but nonetheless American.

The IPKat wonders whether the ECJ's decision on the right to suppress certain search results (perhaps inspired by Sublieutenant Ogilvy?) has implications for copyright. I'm still pondering the whole issue; part of the problem is that the rhetoric in the English-language version of the ECJ opinion is not matching up for me with non-English-language reporting of what it said, on top of concerning some extremely difficult issues. Perhaps the most important is that with present technology, search results are contextless and nonunique.

Last, and far from least, the Supremes are now officially into the last six weeks of the term, meaning that decision days (like tomorrow) are going to be fraught with a bizarre combination of often-overhasty decisions resulting from late-in-Term arguments and hard-to-write decisions from earlier in the Term resulting from difficult doctrine (and/or difficult politics). Since the early 1980s, these decisions have seldom been free of intrinsic flaws without regard to whether I (or, indeed, any other reader) agree with them.

One of those flaws is the inconsistency imposed by both the details and intellectual foundation of legal authority in the imperfect common-law system. In distinct contrast to the first sausage on this platter, legal writing encourages — indeed, enshrines — writing that is exactly like what has come before. The "easiest" case, and "best" authority, is that in which someone else has said exactly what one wants before, with a juicy (all-too-often out of context) quotation as the "proof" of one's rectitude, one's rationale, one's justification. The pecularities of legal citation form and methodology — ranging from the very format of citations, which place the volume number and not the nature of the volume in the place of prime importance, to the requirement to interrupt sentences with often-contextless references to the past — make bad writing and reasoning worse, not just in the briefs but in the final opinions. Listen, Supremes: It's less important to everyone else that you're following specific lines of precedent than that you present defensible reasoning with an appropriate nod to both precedent and the specific context of the matter before you. After all, nobody can appeal from an ill-thought-out Supreme Court decision... at least not in practice, legislative overruling of pure statutory interpretation and potential constitutional amendment notwithstanding (and in either of those instances, the precendent is irrelevant anyway!).

This presents an interesting contrast with the preceding link sausage: Is there a way to remove "irrelevant" precedent from search results? Is there a mandate to do so in the EU? And how will precedent-obsessed lawyers deal with it?

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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